28 PROCTOR | August 2017
Sobering lessons
in workplace safety
Drug and alcohol policy breaches, a one-way ticket to dismissal
Following a string of unfair
dismissal claims involving breaches
of drug and alcohol policies, the
Fair Work Commission (FWC) has
affirmed that the provision of a
safe working environment is the
paramount concern.
Bennett v Viterra Operations Pty Ltd [2017]
FWC 665 (Viterra), along with other recent
decisions, reinforces that, in high-risk work
environments with strong safety cultures,
health and safety considerations outweigh
other factors that may otherwise characterise
a dismissal as harsh, unjust or unreasonable.
Safety outweighs
unusual circumstances
Mr Bennett had been employed by Viterra
(and its predecessors) in Port Lincoln,
South Australia, for 19 years and had an
unblemished employment record. His
workplace duties as a full-time grade three
operator/electrician included high-risk
operations such as managing electrical
systems of up to 415 volts and working
on elevated platforms, trucks and boats.
He also held a permit and licences to
operate truck-mounted cranes.
Viterra mandated that employees operated
under the Glencore/Vittera Alcohol and Other
Drugs Policy (the policy). Under the policy,
the alcohol limit for risk-exposed workers
like Mr Bennett was strictly 0.02.
On 23 August 2016, Mr Bennett presented for
work at 7am, having consumed three to four
pint-sized1 glasses of red wine the previous
night. He was selected for random alcohol
breath testing and received two positive
results at 7.07am and 7.25am, with readings
of 0.043 and 0.040 respectively – double the
level prescribed by the policy. Consequently,
he was stood down without pay.
Mr Bennett was surprised by the results
and sought an independent assessment.
During subsequent disciplinary discussions,
he advised his employer that, for various
reasons, he was metabolising the alcohol at
a much slower rate than would be considered
normal and would never have attended work
had he believed there was a chance he could
still be over the policy limit.
Nonetheless, Viterra dismissed Mr Bennett
on 29 August 2016, citing a breach of the
policy and breach of trust. On 14 September
2016, Mr Bennett submitted an application
pursuant to s394 of the Fair Work Act 2009
(Cth) (FW Act), seeking remedy for alleged
unfair dismissal.
The arguments
Mr Bennett argued his dismissal was
unfair because:
• There was no valid reason for his dismissal
and its circumstances were harsh, unjust
or unreasonable.
• There were irregularities in the amount
of alcohol consumed and the breath test
results indicated Mr Bennett’s ability to
metabolise alcohol was impaired.
• Viterra did not sufficiently account for his
impaired metabolism, length of service and
reduced employment prospects.
• The policy required these extenuating
circumstances be considered.
• Viterra inconsistently applied disciplinary
outcomes under the policy to other
employees.
Viterra countered, submitting the dismissal
was fair because:
• Breaching the policy was a valid reason
for the dismissal – Mr Bennett was notified
of this reason and provided with an
opportunity to respond.
• Viterra’s high priority of workplace safety
outweighed Mr Bennett’s explanation
for his conduct and length of service.
• Like Mr Bennett, all other Viterra
employees who had exceeded the
0.02 alcohol limit had been dismissed.
Finding
Commissioner Platt found Mr Bennett’s
breach of the policy constituted a valid
reason for dismissal. Acknowledging the
inherently high risk associated with Mr
Bennett’s role, the commissioner accepted
Viterra’s claim that it placed a high level
of importance on safety, evidenced by the
company’s policies and handbook initiatives.
The commissioner also accepted Viterra’s
evidence that it enforced the policy
consistently with other employees.
The commissioner was not satisfied there was
sufficient evidence to show that Mr Bennett
committed a breach of trust by allegedly failing
to provide a consistent account of the amount
of wine he had consumed the night before.
The commissioner also did not accept that
Mr Bennett sought to mislead Viterra, however
denied the application for remedy for unfair
dismissal nonetheless.
Safety reigns
Viterra is one of many recent decisions
involving breaches of drug and alcohol
policies in high-risk workplaces. In Hafer v
Ensign Australia Pty Ltd [2016] FWC 990,
Mr Hafer was dismissed from his job in a gas
field after returning a positive drug test result
in breach of the company’s zero tolerance
policy. Mr Hafer’s unfair dismissal application
failed despite some procedural deficiencies in
the company’s approach to the termination.
In another example, Metro Quarry Group Pty
Ltd v Ingham [2016] FWCFB 47, Mr Ingham
was selected for random alcohol breath-testing
and returned a positive reading of 0.013. He
was dismissed on the basis that allowing him
to continue working would be a breach of the
company’s duty of care to him and his fellow
workers. The commission agreed with the firm
approach taken by the company.
These cases suggest the commission is
inclined to prioritise the enforcement of
a prudent health and safety policy over
competing considerations such as employee
tenure, age, prior unblemished records, or
procedural deficiencies in the employer’s
dismissal process.